Janice BELCHER
v.
John Russell BELCHER.
No. CA 02-1014.
Court of Appeals of Arkansas, En Banc.
December 4, 2002.*109 Law Offices of Charles M. Kester, P.L.C., by: Charles Kester, Fayetteville, for appellant.
Wisely Law Offices, by: William R. Wisely, Hot Springs, for appellee.
PER CURIAM.
The appellant, Janice Belcher, has moved for leave to file a motion for new trial based upon newly discovered evidence, pursuant to Ark. R Civ. P. 60(c)(1). Belcher asks that her appeal be held in suspension while the trial court entertains the motion for new trial.
The trial court has the discretion to grant a new trial pursuant to Rule 60(c)(1) for up to one year after discovery of the grounds or one year after a judgment is filed with the clerk of the court, whichever is earlier. In this instance, the judgment appealed was entered on June 7, 2002. The trial court retains the ability to modify, set aside or vacate its judgment to allow a new trial even after the case has been appealed to the supreme court or court of appeals and affirmed. Davis v. Davis 291 Ark. 473, 725 S.W.2d 845 (1987); Garrett v. Allstate Ins. Co., 26 Ark.App. 199, 762 S.W.2d 3 (1988).
This court denied the appellant's identical motion for remand in Garrett v. Allstate Ins. Co., supra, citing that the briefs had all been filed and the case was ready for decision as a basis for the denial. The case before us is distinguishable in that no briefs have yet been filed, and we conclude based on the allegations raised that the trial court should be given the opportunity to act on the motion for new trial prior to submission of the case. Accordingly, we remand this case to the trial court to decide Belcher's motion for new trial, and direct that this appeal be held in abeyance pending the trial court's decision.
Motion granted.
ROBBINS, J., not participating.